Academic journal article Harvard Law Review

The Best of a Bad Lot: Compromise and Hybrid Religious Exemptions

Academic journal article Harvard Law Review

The Best of a Bad Lot: Compromise and Hybrid Religious Exemptions

Article excerpt

I. INTRODUCTION

The Free Exercise Clause of the Constitution has had a meandering history. Few have questioned that the clause prohibits the government from deliberately restricting religious beliefs as such (1) or from proscribing certain behaviors "only because of the religious belief that they display." (2) More contentious, however, has been the clause's interaction with laws of general applicability that, by their terms, happen to sweep in religiously motivated behaviors. For most of the nation's first two centuries, the Supreme Court upheld a variety of such laws against claims that they inhibited the free exercise of religion. (3) In 1963, however, the Warren Court reversed course and, in Sherbert v. Verner, (4) held that South Carolina could not deny unemployment benefits to a Seventh-Day Adventist who had been fired for being unavailable to work on Saturdays, her Sabbath. (5) Sherbert and the cases that followed (6) "created the potential for challenges by religious groups and individual believers to a wide range of laws that conflict with the tenets of their faiths, because such laws impose penalties either for engaging in religiously motivated conduct or for refusing to engage in religiously prohibited conduct." (7)

In the decades following Sherbert, free exercise jurisprudence consisted largely of similar challenges, (8) but in 1990, the Court reversed course again and sharply restricted the scope of the clause's reach with respect to laws of general applicability. In Employment Division v. Smith, (9) the Court ruled that the clause "does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'" (10) In so doing, the Court declined to overrule the prior cases that had granted religious exemptions to general laws, instead attempting to distinguish them on the ground that they had involved a type of "hybrid situation" in which the free exercise right was combined with some other constitutional claim. (11)

This effort to distinguish the earlier free exercise cases has been criticized as flawed (12) and dishonest, (13) but regardless of its soundness, the lower federal courts remain in the unenviable position of attempting to decipher and apply it. Unsurprisingly, their efforts to do so have been neither straightforward nor consistent. The courts have broken into three major camps, each with a different approach to hybrid rights: some courts essentially ignore the hybrid rights discussion in Smith, dismissing it as dicta and treating Smith as having overruled the earlier cases; others pay lip service to hybrid rights by recognizing hybrid claims but requiring the companion claim to be "independently viable," which renders the free exercise claim redundant; and still others have developed a "colorable claim" standard, which requires some showing of a likelihood of success on the non-free exercise claim to trigger increased scrutiny. Each of these approaches represents an honest effort to draw a clear rule from the language of Smith, but unfortunately, it is impossible to adopt a broadly applicable approach to hybrid rights that does not compromise other important constitutional values. (14)

Because such a broad rule is impossible, this Note suggests cabining the hybrid rights doctrine to claims and fact patterns that very closely resemble those discussed by the Smith Court. This approach would allow the lower courts to respect their subordinate role in the judiciary by giving meaning to both Smith's holding and its hybrid rights language, while also preventing the hybrid rights doctrine from compromising the Establishment and Equal Protection Clauses in favor of the Free Exercise Clause. Part II lays out the Court's opinion in Smith and briefly notes the academic criticism and legislative responses it provoked. Part III discusses the various approaches adopted by the lower courts since Smith and their respective shortcomings. …

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